Rule Changers

Republicans Against the Republic

The GOP has a long history of making their perversion of the rules of Congress the new normal. Lawrence Lessig says they’re ignoring the political responsibility the system needs to operate.

So you’re walking down the street, and a man steps in front of you with a gun. “Give me your money,” he says. “No,” you (perhaps stupidly) reply. “Give me half your money,” he insists. “No,” you insist again. “Hey, what’s the matter with you,” he says, outraged. “Don’t you know how to compromise?”

To most Democrats, the behavior of House Republicans in the current budget standoff is just like this. The Republicans have made a serious threat to an already weakened economy. If it isn’t resolved soon, the likely default on United States debt could be catastrophic. To threaten these fundamentals over a disagreement about insurance policy seems crazy to Democrats. Even worse, illegitimate. “By what right,” Democrats ask, “does a minority hold the United States government hostage?”

But the problem for the Democrats is that Republicans are not behaving like armed thugs, because their demand is not (yet), within our system, illegitimate. Politicians are free to support legislation for whatever reason they want. Subject to the rules regulating bribery, they’re free to demand whatever they want in return for a vote. Democrats might not like that the Republicans have this power. But their exercising it within our constitutional system is not a crime.

But freedom is different from responsibility. And the real question that Republicans need to be asking their party leadership is whether this is the kind of government that Americans should want.

Over the past 20 years, Republicans have given us a series of “innovations” in how Congress is run. In each case, the Democrats criticized the innovation—until they copied it. From the shift to permanent fundraising, to the shrinking of the congressional work week, to the slowing of the confirmation process, to the linking of committee chairmanships to campaign contributions, to the permanent political war that is the modern Congress—each change was at first opposed by Democrats. Then each change became standard operating procedure for both Democrats and Republicans.

It’s been John Boehner vs. President Obama in the fiscal face-off.

The Republicans are currently the minority party in American politics. They need the integrity to recognize what being an ethical minority within our system requires.

And so too with this current “innovation.” Both parties have issues they feel strongly about (or more cynically, issues that trigger large flows of campaign dollars). The liberal Democrats care deeply about equality. They are skeptical about surveillance. And they have strong views about unions. What reason do they have, after the spectacle we’re witnessing just now, not to do the same thing to the next Republican president? The parties are deeply competitive. Either could become a majority. But becoming a majority will mean little if a minority feels entitled to use its blocking power to hold the government hostage.

This is a point scholars of Congress have been making for a long time. The Framers gave us a unique design for a democracy. That separation of powers design depends upon members respecting the norms of institutional ethics. Freedom needs responsibility. And political responsibility in a republic demands that a party not use its power to force changes in existing law when it can’t with honesty say that it represents a majority.

In this case, the Republicans can’t with honesty make that claim: the president won a campaign defined around healthcare; the Senate remained in Democratic control despite the healthcare issue; and though there are more Republicans in the House than Democrats, Democratic candidates in the House received more votes overall than Republicans did. The Republicans are currently the minority party in American politics. They need the integrity to recognize what being an ethical minority within our system requires.

For we are not Europe or Israel. We don’t have a parliamentary system of government. Stalemate going forward may be inevitable, at least with the system our Framers built. But blackmail is a choice. And when the Republicans choose to use that weapon, they begin us down a road to permanent ungovernability.

The president is right to resist the Republicans’ choice—not just to defend Obamacare, but more importantly, to defend a system of government. The Republicans are free to choose as they have. But they are also free to behave like representatives within a system of separated powers, and to govern with the maturity that our Framers took for granted.